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“On this basis, the Scottish Government does not support the development of unconventional oil and gas in Scotland. This means development connected to the onshore exploration, appraisal or production of coal bed methane or shale oil or shale gas using unconventional oil and gas extraction techniques, including hydraulic fracturing and dewatering for coal bed methane.

On 03 October 2019, Heads of Planning Scotland and the Scottish Environment Protection Agency were informed of the finalised policy position via letters issued by the Chief Planner (HoPS) and Scottish Government officials (SEPA). A Planning Direction has also been issued to reflect the wording of the finalised policy.

This approach ensures decisions on onshore unconventional oil and gas developments will be made having regard to planning policy and procedure, and within the framework of Scottish Government policy – a policy that does not support unconventional oil and gas development in Scotland.”

On page 9 of that document, in the context of transferred powers for granting and regulation of licences to search and bore for and get petroleum within the Scottish onshore area; determining the terms and conditions of licences; and regulating the licensing process, including administration of existing licences, it states:

“In addition to the policy of no support for unconventional oil and gas being a material

consideration for planning decisions…..”

It is in that context that the reporters asked for your client’s intentions in the appeals.

It is usual practice in planning appeals where Scottish Government policy is a major consideration that parties to the appeals make submissions on how the policy should be interpreted. Appeals and applications for onshore wind farms are the most obvious example of that practice.

If your client decides to proceed with the appeals, the reporters envisage that your client, and all the other parties to the appeals, would make submissions on the Scottish Government’s finalised policy position on unconventional oil and gas development. In their report to Scottish Ministers, the reporters would include their summary of these submissions and make their recommendations on what should happen with the appeals, as is normal in recalled appeal cases.

The reporters do not consider that DPEA should be used as an intermediary between your client and the Chief Planner and I will not forward your email of 12 November 2019 to him. It is, of course, open to your client to engage in direct discussion with the Chief Planner on this matter.

 

I would be grateful, therefore, if you could advise whether or not your client wishes to proceed with the appeals. Please reply within 7 days. Kind regards,

Jane Robertson Specialised Case Officer

Planning and Environmental Appeals Division

4 The Courtyard

7

Communications with the Scottish Government may be monitored or recorded in order to secure the effective operation of the system and for other lawful purposes. The views or opinions contained within this e-mail may not necessarily reflect those of the Scottish Government. ********************************************************************** This email is from DLA Piper Scotland LLP. The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed to or used by or copied in any way by anyone other than the intended recipient. If this e mail is received in error, please contact DLA Piper Scotland LLP on +44 (0) 20 7349 0296 quoting the name of the sender and the email address to which it has been sent and then delete it. For more information on how we process personal data please see www.dlapiper.com/privacy-policy. Please note that neither DLA Piper Scotland LLP nor the sender accepts any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. DLA Piper Scotland LLP is a limited liability partnership registered in Scotland (registered number SO300365), which provides services from offices in Scotland. A list of members is open for inspection at its registered office and principal place of business Rutland Square, Edinburgh, EH1 2AA. Partner denotes member of a limited liability partnership. DLA Piper Scotland LLP is regulated by the Law Society of Scotland and is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com. ______________________________________________________________________ This email has been scanned by the Symantec Email Security.cloud service. For more information please visit http://www.symanteccloud.com ______________________________________________________________________

[oLJIPER DLA Piper Scotland LLP Collins House Rutland Square Edinburgh EH1 2AA DX ED271 Edinburgh 1 T +44 131 242 5094 F +44 (0) 131 242 5555 W www.d lapiper.com

The Chief Planner Your reference Planning and Architecture Division Local Government and Communities Directorate Scottish Government Victoria Quay

Our reference SRT/MBC/359051/29

UKM/100180318.1

Edinburgh EH66QQ

19 November 2019

Dear Chief Planner

APPEALS PP A-240-2032 & PP A-390-2029

We are instructed by the appellant, INEOS Upstream Limited.

We enclose for your information a copy of an email that we received from the DPEA on 13th November 2019.

You will note the advice from the DPEA that if the appellant required any further advice and direction from the Scottish Government on the practical application of its recently finalised policy of "no support" for onshore unconventional oil and gas development in Scotland, it should contact you directly to make the request rather than have that request sent to you via the DPEA.

We have now had the opportunity to discuss this direct contact option with our clients and are instructed to write to you to request your assistance in relation to that practical application issue ahead of them providing the Reporters with their final view on their intention for the subject appeals.

INEOS and the other parties to the appeals are aware that the Scottish Ministers have confinned in the Court of Session that their new policy does not constitute a ban on onshore unconventional oil and gas development in Scotland. That being the case, it follows, as you explained in your letter to HoPS dated 3rd October, that the new policy will fall to be categorised in law as a "material consideration" which the Scottish Ministers will be required to take into account along with all other relevant material considerations, including the tested scientific evidence, when determining the appeals. Again as a matter of law, the weight to be attached to the new policy in the decision­making process will be a matter for them, subject to the usual administrative law test of Wednesbury unreasonableness.

This suggests, therefore, that the Scottish Ministers' new policy of "no support" cannot be taken as meaning that they will dismiss every onshore unconventional oil or gas development application that comes before them, regardless of its individual merits. If that were to be the case, the new policy would in its practical application (i) constitute an effective and immediate ban on all onshore unconventional oil and gas development in Scotland, (ii) breach the fundamental planning law principle that every application must be treated on its own merits and, (iii) so far as the subject appeals are concerned,

DLA Piper Scotland LLP is regulated by the Law Society of Scotland.

DLA Piper Scotland LLP is a limited liability partnership registered in Scotland (number 80300365) which is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities.

A list of members is open for inspection at its registered office and principal place of business, Collins House, Rutland Square, Edinburgh EH1 2AA and at the address at the top of this letter. Partner denotes member of a limited liability partnership.

A list of offices and regulatory information can be found at www.dlapiper.com.

UK switchboard +44 (0) 20 7349 0296

INVESTOR IN PEOPLE

rDLJIPER

render their outcome a foregone conclusion. For those reasons INEOS wishes to understand, ahead of confirming to the DPEA how it would wish the Reporters to deal with the appeals, how the Scottish Ministers see their policy of "no support" being applied in practice.

For example, INEOS would be keen to understand in particular how the Scottish Ministers see their new policy interacting with the regime for the prevention of fugitive gas emissions set out in the Pollution Prevention and Control (Scotland) Regulations 2012 (as amended). As the Scottish Ministers are aware, the PPC regime is intended to prevent or mitigate the impact of emissions in order to render them harmless. If the evidence given at the appeal inquiry showed, as INEOS would contend that it did, that any potential pollution problems, including the potential climate change impacts arising from drilling, flaring and venting operations, could be safely left to the PPC authorisation process, the question then arising would be whether (all other things being equal) it would be lawful in these circumstances for the Scottish Ministers to give little or no weight to that scientific evidence whilst giving overriding weight to their new policy of "no support" in order to justify refusal. In the normal course of events a decision concerning the weight to be attached by the Scottish Ministers to these apparently competing considerations would be regarded as an exercise of planning judgement, but, as would be the case with the exercise of any discretionary power, a party in the position of the Scottish Ministers would have to provide reasons explaining why they had concluded that it was reasonable for them to set aside the scientific evidence and give overriding weight instead to their policy of "no support". Put simply the fundamental issue is whether the new policy is intended to override every other relevant material consideration, including scientific evidence supporting the development, no matter how compelling?

In INEOS' view, matters such of these relating to the application of a new planning policy would normally have been expected to be addressed in supporting explanatory text which had been consulted upon prior to the final policy position being announced. And as the DPEA has reminded INEOS, it is usual practice in plaiming appeals where Scottish Government policy is a major consideration that parties to the appeals make submissions on how the policy should be interpreted. But all that the Scottish Ministers have advised in relation to this new policy, as confirmed in your letter of 3rct October, is that the Scottish Govermnent "does not support" onshore unconventional oil and gas development in Scotland. No further advice has been issued to explain how the Scottish Ministers would propose to apply their policy of "no support", for example, to an application which was submitted at a time of external threat to energy supplies and against a backdrop where the scientific evidence demonstrated that the issue of emissions to land, air and water could be satisfactorily mitigated. As an application of that nature would require to be determined on its individual merits, the question arising is whether in these circumstances, the Scottish Ministers would be prepared to set their policy of "no support" aside and grant the applicant planning permission.

INEOS and, doubtless, the other parties to the appeals would welcome any advice or comments that you may be able to provide to assist the interpretation process.

SRT/MBC/359051 /29 UKM/100180318.1

Continuation 2 19 November 201 9

[oLJIPER

We look forward to hearing from you.

Yours faithfully

1) ()c1\. ( v----

DLA PIPER SCOTLAND LLP

Encl

SRT/MBC/359051/29 UKM/100180318.1

Continuation 3 19 November 2019

Communications with the Scottish Government may be monitored or recorded in order to secure the effective operation of the system and for other lawful purposes. The views or opinions contained within this e-mail may not necessarily reflect those of the Scottish Government. ****.*****************************************************************

This email is from DLA Piper Scotland LLP. The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed to or used by or copied in any way by anyone other than the intended recipient. If this email is received in error, please contact DLA Piper Scotland LLP on +44 (0) 20 7349 0296 quoting the name of the sender and the email address to which it has been sent and then delete it. For more information on how we process personal data please see www.dlapiper.com/privacy-policy. Please note that neither DLA Piper Scotland LLP nor the sender accepts any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. DLA Piper Scotland LLP is a limited liability partnership registered in Scotland (registered number S0300365), which provides services from offices in Scotland. A list of members is open for inspection at its registered office and principal place of business Rutland Square, Edinburgh, EHl 2AA. Partner denotes member of a limited liability partnership. DLA Piper Scotland LLP is regulated by the Law Society of Scotland and is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com.

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********************************************************************** This e-mail (and any files or other attachments transmitted with it) is intended solely for the attention of the addressee(s). Unauthorised use, disclosure, storage, copying or distribution of any part of this e-mail is not permitted. If you are not the intended recipient please destroy the email, remove any copies from your system and inform the sender immediately by return. Communications with the Scottish Government may be monitored or recorded in order to secure the effective operation of the system and for other lawful purposes. The views or opinions contained within this e-mail may not necessarily reflect those of the Scottish Government. **********************************************************************

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